Extracting resources from the Moon could run afoul of the Moon Treaty even if it’s done by a country that hasn’t signed onto or ratified the accord. (credit: NASA)

The Moon Treaty: failed international law or waiting in the shadows?

by Michael ListnerMonday, October 24, 2011

In his essay “Is a human asteroid mission a non-starter?” (The Space Review, October 17, 2011), Anthony Young explored whether a mission to an asteroid planned by the Obama Administration is captivating enough to retain public interest until its planned launch in 2025. In the ensuing commentary, several people discussed the issue of resource exploitation, with this author postulating that, aside from the technical and economic challenges to exploiting mineral resources on asteroids, the current state of international law, specifically the Moon Treaty 1979, might be an obstacle.

The discussion drew the critique that the Moon Treaty is not binding international law since the United States, the Russian Federation, and the People’s Republic of China (PRC) have neither signed, acceded to, nor ratified the Moon Treaty. This essay will briefly explore the nature of international law, the Moon Treaty of 1979, and the weight of that accord in the context of international law.

The nature of international law

International law is a unique creature of law in that it exists both as custom and treaty. An example of custom in the realm of maritime law is the rule that federal warships continue to belong to their country of origin unless that country expressly abandons it. As such, federal warships are not subject to international maritime laws of salvage. In the arena of outer space, customary law has also found its place as well. Almost a decade before the Outer Space Treaty was proffered, the former Soviet Union made history with the launch of Sputnik 1, but aside from its historical and scientific achievements, the placement of the world’s first artificial satellite established the customary norm of free passage in space even when that passage transits over the territory of sovereign nations.

The placement of the world’s first artificial satellite established the customary norm of free passage in space even when that passage transits over the territory of sovereign nations.

The second leg of international law is treaty. Treaties can bind a nation in several different ways, with ratification being the most well known. The act of ratification signifies a nation’s agreement to be legally bound by the terms of a particular treaty. In the United States, ratification of an international treaty requires Senate approval. Once ratified, it has the same legal force as a federal statute promulgated by Congress, and its legal effect can only be negated by withdrawing from a treaty, Congress promulgating a statute to counteract a treaty, or a determination by the judicial branch that a treaty is unconstitutional.

Aside from ratification, nations can give weight to treaties through the acts of acceding and signature. When a nation accedes to a treaty it indicates that it agrees to be legally bound by the terms of a particular treaty, thus having the same legal effect as ratification; however, it is not preceded by an act of signature. Conversely, the act of a nation signing a treaty indicates its willingness to give its preliminary endorsement of a treaty but does not legally bind a nation. The advantage of signature over acceding is that it demonstrates a nation’s intention to further examine a treaty domestically and consider it for ratification while at the same time making no commitment to ratify it.

On some occasions, customary international law and treaty law intersect. For example, the aforementioned customary law surrounding the wrecks of federal warships was incorporated into a treaty between the United States and Spain, whereby it was agreed that Spain would retain ownership of the wrecks of warships and their cargoes found off the coast of the United States. The precept found in Article X of the 1902 [US-Spain] Treaty of General Friendship is still in force and was successfully used by the Spanish before the 11th Circuit Court in May of 2011 when it asserted its ownership of the wreck of the Spanish frigate Nuestra Senora de las Mercedes and its cargo of precious metals, which was discovered and claimed under the “finders-keepers rule” by Odyssey Marine Exploration in 2007.1

The Moon Treaty of 1979

The Moon Treaty is the fourth child of the Outer Space Treaty. It was deliberated and developed by the Legal Subcommittee for the Committee on the Peaceful Uses of Outer Space (COPUOS) from 1972 to 1979. It was adopted by the United Nations General Assembly in Resolution 34/68 and opened for signature in 1979, but was not placed in force until June 1984 when the fifth country, Austria, ratified it. Presently, the Moon Treaty has been ratified by six countries. Four countries, including France and India, are signatories, and seven countries have acceded to the Moon Treaty, including Australia. The United States, the Russian Federation (former Soviet Union), and the People’s Republic of China have neither signed, acceded, nor ratified the Moon Treaty, which has led to the conclusion that it is a failure from the standpoint of international law.2

The Moon Treaty provides that the Moon and its natural resources are the common heritage of mankind and the harvesting of those resources is forbidden except through an international regime established to govern the exploitation of such resources when it becomes feasible to do so.

Like the three other children of the Outer Space Treaty, the Moon Treaty upholds and elaborates on many of the provisions of its parent. Specifically, the Moon Treaty applies to the Moon and other celestial bodies in the solar system excluding the Earth. It provides that these bodies should be used exclusively for peaceful purposes, that their environments should not be disrupted, and that the United Nations should be informed of the location and purpose of any station established on those bodies. The Moon Treaty also closes a loophole in the Outer Space Treaty by banning any ownership of any extraterrestrial property by any organization or private person, unless that organization is international and governmental.

The most controversial section of the Moon Treaty deals with natural resources on the Moon. The Moon Treaty provides that the Moon and its natural resources are the common heritage of mankind and the harvesting of those resources is forbidden except through an international regime established to govern the exploitation of such resources when it becomes feasible to do so. The exact nature of this regime is not detailed, nor is the term “resources” defined. It is reasonable to presume that the term “resources” would include recently discovered mineral deposits including titanium, the substantial water ice discovered at the Moon’s south pole, and the helium-3 within the lunar regolith that entrepreneurs such as Apollo 17 astronaut Harrison Schmidt have proposed to extract to power future fusion reactors.

The form of the form of the international regime introduced in the Moon Treaty has yet to fleshed out, but it is probable that it would be similar in form to the international regime called “The Enterprise”, which was proposed in Part XI of the 1994 Agreement of the Law of the Sea Convention to oversee the mining of mineral resources in the world’s oceans, including poly-metallic nodules. The nature of the Enterprise was envisioned to oversee developed nations and private companies operating under their jurisdiction and would have required a portion of the mineral wealth mined from the ocean floor to be allocated to the Enterprise for distribution among the developing countries. More worrisome for countries such as the United States was that the Enterprise as envisioned also required that developed nations transfer technology to the Enterprise so the non-developed could also participate in the extraction of resources from the ocean floor.

If the international regime envisioned by the Moon Treaty takes a form similar to that of the Enterprise, developed nations would be required to relinquish a portion of the resources extracted from the Moon and other celestial bodies. They would also be required to surrender technology developed by private industries under their jurisdiction for extracting extraterrestrial resources so that developing nations could participate in the activity of acquiring those resources as well. This implies that the Moon Treaty’s common heritage view applies not only to extraterrestrial real property and resources but to intellectual property rights as well.3

The Moon Treaty and International Law

As discussed earlier, the three major spacefaring nations (“the Big Three”) are non-parties to the Moon Treaty, which has led to the opinion that the Moon Treaty is a failure as a treaty and international law. However, even though the Moon Treaty is technically not binding on the Big Three, it is technically valid international law. Even with only six nations ratifying the Moon Treaty, the fact that eleven other nations, including Australia, France, and India, have acceded to or become signatories to the Moon Treaty creates a shadow of customary law that could grow such that non-parties could find themselves overshadowed by the penumbra of the Moon Treaty, especially if those non-parties take no action to refute its legitimacy.

For example, the Moon Treaty was initially favored for ratification by the United States during the Carter Administration, but efforts by industry and groups such as the L-5 Society generated concern among members of the Senate Foreign Relations Committee, who ultimately decide whether to present the Moon Treaty for ratification. This concern led the Carter Administration to put the issue of ratification on hold until it was politically feasible.

A potential game-changer that could give strength to the shadow of the Moon Treaty is the possibility that either Russia or China could decide to throw its diplomatic weight behind the Moon Treaty.

The succession of the Reagan Administration derailed any future ratification of the Moon Treaty. The administration gave notice that it was against moving forward with ratification the Moon Treaty, which effectively made the Moon Treaty dead as far as the United States was concerned. Despite this, no official position was ever taken by the United States on the validity of the Moon Treaty, and in essence it was put on the political backburner.4 Conversely, while the United States has not taken an official position on the Moon Treaty, it has officially recognized in diplomatic circles the binding nature of the other four space law treaties, while notably not mentioning the Moon Treaty. While this does not have the force of openly renouncing the Moon Treaty, the question remains whether it helps to stave off the shadow of customary international law and its foreseeable creep to bind non-parties to the Moon Treaty.

Ironically, the strongest defense mounted by the United States against the shadows of the Moon Treaty does not come from the State Department but from a declaration of claim granted made by Dennis Hope.5 In 1980, Dennis Hope filed a declaration of claim with the United States government asserting a claim over the Moon. Ever since Hope’s declaration was filed he has been selling parcels of lunar property to individuals as well as franchising his real estate business across the globe. Purchasers for Hope’s lunar real estate sales include former presidents, celebrities, and private individuals who either retain their title for their persons or to establish off-world financial havens.

Many legal scholars (including the author) have questioned the legitimacy of Hope’s title to the Moon as well as conveyances passed to his customers. Despite this, the fact remains that his claim, which has not been formally rejected by the United States government, flies in the face of the Moon Treaty and its validity as binding international law. So while the United States’ apparent endorsement of Hope’s activities is not an official denunciation of the Moon Treaty, it does have the effect of impeding the shadow of the Moon Treaty.

A potential game-changer that could give strength to the shadow of the Moon Treaty is the possibility that either Russia or China could decide to throw its diplomatic weight behind the Moon Treaty. The status of both countries as non-parties to the Moon Treaty contributes to its repute as a failed treaty; however, the opposite would true if either or both nations at the very least signed or acceded to the Moon Treaty. Such an action would not only revive the Moon Treaty’s reputation, but it would also expand the shadows of customary law engulfing parties and non-parties alike. Both the PRC and the Russian Federation would stand to gain in terms of soft power with such a move. Moreover, with both the nations already seeking to expand the treaty base of international space law in terms of space security through efforts to impose a formal ban on weapons in space, formally recognizing the Moon Treaty could pressure United States’ space policy from two fronts.

For its part, the United States would be faced with a two-prong diplomatic attack with the PPWT and a resurgent Moon Treaty compelling the United States from two directions. While current US space policy allows for the consideration of new space law treaties if they are equitable and can be verified, the current and foreseeable political environment is not conducive to adopting either of the treaties. However, even if the United States fends off such a diplomatic attack, the effect on the shadow of the Moon Treaty by such a move by the Russian Federation and the PRC would be significant.

The true test of the Moon Treaty both as treaty and customary law will not come until the exploitation of extraterritorial resources becomes technically and economically feasible.

If the United States finds itself backed into a corner diplomatically from such a scenario, it could a take a tack similar to the one it took with the Law of the Sea Convention by becoming a signatory. As previously mentioned, the act of signing the Moon Treaty would not obligate the United States to ratify it nor to abide by its precepts. Becoming a signatory would give the United States the opportunity to seek modifications to the Moon Treaty that could nullify some of the more concerning parts. However, becoming a signatory to the Moon Treaty would also increase the reach of the shadow of the Moon Treaty, and if the United States decided to withdraw without acceding or ratifying the Moon Treaty, it could find that shadow to be much stronger and difficult to turn back.

Conclusion

Assuming that the Moon Treaty has no legal effect because of the non-participation of the Big Three is folly. The shadow of customary law and its ability to creep into the vacuum left vacant by treaty law should not be underestimated. To that end, the most effective way of dealing with the question of the Moon Treaty’s validity is to officially denounce it. However, the realities of international politics and diplomacy will likely preclude such an action. The alternative is to act in a manner contrary to the Moon Treaty, and more importantly not to act in conformity with its precepts and hope that is sufficient to turn back the shadows of the Moon Treaty.

Still, the true test of the Moon Treaty both as treaty and customary law will not come until the exploitation of extraterritorial resources becomes technically and economically feasible. The question is when that time comes, will the shadow of the Moon Treaty have grown sufficiently to blanket parties and non-parties alike under the penumbra of customary international law?

Footnotes

3 See Michael J. Listner, “The Ownership and Exploitation of Outer Space: A Look at Foundational Law and Future Legal Challenges to Current Claims, 1 Regent J. Int’l L. 75, 82 (for a more detailed discussion of the Moon Treaty.)

5 Dennis Hope apparently also filed a declaration with the former Soviet Union and the United Nations along with his declaration to the United States government. See Lunar Embassy, What’s it all About.

Michael Listner is an attorney and policy analyst with a focus on issues relating to space law and security. He is a Senior Contributor at DefensePolicy.Org and can be contacted at michlis@alumni.regent.edu or via Twitter @ponder68.